Potential New Room for Maneuver by Municipalities Looking to Promote Broadband Investment?

The extent of local authority over broadband policy seems to be emerging in a new way in 2014. The recent District of Columbia decision overturning network neutrality rules contains some interesting potential new strategic elements.

The decision concludes that the Federal Communications Commission has authority to overrule state-level laws that prohibit municipalities from building and operating their own broadband access networks, under its interpretation of Section 706 of the Telecommunications Act of 1996.

But some also argue there is another possibility as well, namely that states might be able, under the same provisions, to impose “regulatory methods that remove barriers to infrastructure investment” under the same legal theory.

Those of you who remember the regulatory wars over Voice over IP will recall that the FCC eventually decided it had authority to preempt state regulation of VoIP, as VoIP was an interstate service.

In the latest twist, some might argue that states have co-equal authority with the FCC to remove barriers to broadband investment locally.

In that respect, words will matter. Most assume federal preemption over “telecommunications services.” But broadband access is not a telecommunications service.

Some think federal preemption of state laws prohibiting municipal broadband might eventually result from subsequent FCC action. But a more interesting possibility also is what municipal authorities might try, in terms of policies to promote broadband investment in their communities.
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